ADHESION AGREEMENT FOR THE PROVISION OF CLOUD SERVICES, ENTERED INTO BY AND BETWEEN GRUPO PERSAMP S. DE R.L. DE C.V., HEREINAFTER REFERRED TO AS THE "PROVIDER", ON THE ONE HAND, AND THE PERSON WHOSE DATA ARE SET FORTH IN THE "ANNEX", HEREINAFTER REFERRED TO AS THE "CLIENT", ON THE OTHER, IN ACCORDANCE WITH THE FOLLOWING DECLARATIONS AND CLAUSES:
1. GRUPO PERSAMP S. DE R.L. DE C.V. DECLARES THAT:
I. That it is a legal entity incorporated in accordance with the mercantile legislation in force for Mexico, which is evidenced by notarial instrument 33,629, volume 542, dated June 23, 2016, passed before the faith of María Judith Espejel González, Notary Public 52 of the city of Puebla, with electronic mercantile folio N-2016010916.
II. That the address to receive all kinds of notifications is located at Priv. 7 A Sur 4304 Fracc. Alpha 2 Col. Gabriel Pastor, C.P. 72420, Puebla, Mexico and e-mail to email@example.com.
III. That it has its RFC GPE160623UZ7.
2. THE CLIENT DECLARES THAT:
I. That all the data stated in THE ANNEX, of the present contract, whose term is defined below, are true.
II. That prior to the execution of this contract, he/she has received information to his/her entire satisfaction regarding the content of this contract, therefore, he/she has fully understood the manner in which the PROVIDER renders its SERVICES, and therefore, he/she is obliged to comply with its terms and conditions.
III. That its general data, address, location data and Federal Taxpayers Registry Code are those indicated in the ANNEX.
IV. That in this act he/she is requesting the CONTRACTED SERVICES indicated in the ANNEX of the present contract, adhering to the clauses of the present contract and that he/she has the legal capacity to bind him/herself in terms of the present contract.
V. That prior to the execution of this contract, it has used the software and cloud services offered by the PROVIDER free of charge, verifying its correct operation, so there are no hidden defects and it is satisfied with the operation and functioning of these.
3. BOTH PARTIES DECLARE THAT:
I. Bind themselves under the terms of this contract and its annex, as well as to the contents of the Political Constitution of the United Mexican States, the Code of Commerce, the Federal Telecommunications and Broadcasting Law, the Federal Civil Code, the Federal Administrative Procedure Law, the Federal Code of Civil Procedures, and other legal provisions that, according to Mexican Law, govern the contracting, execution and performance of this contract. Expressly waiving any other legislation that may correspond to them due to their domicile, including international legislation.
II. They have the legal capacity to contract and bind themselves under the terms of this contract and that the parties under oath declare that the powers with which they sign this contract have not been revoked or modified in any way to date.
In view of the foregoing, the parties grant the following:
FIRST.- PURPOSE OF THE CONTRACT.- By virtue of this contract, the PROVIDER allows the CUSTOMER to connect to its software and cloud services, devices to monitor, track, locate and manage assets and people in real time, as well as to execute and optimize logistic, security, information and e-commerce processes, as expressly agreed in the ANNEX.
SECOND - DEFINITIONS.
Annex. Document that forms an integral part of the contract, where the main data of the CLIENT, the CONTRACTED SERVICES, the CONTRACTIONS, the PAYMENT SYSTEM and other characteristics of this contract are consigned.
Day. Any reference to "day" in this Agreement shall be a calendar day.
"Acceptable Use Policy" Is defined in the Software and Cloud Services Terms and Conditions.
"Subsidiary" Means any legal entity owned by a party, owned by a party, or under common ownership with a party. For the purposes of this definition, "ownership" is controlling more than 50% of the capital stock of an entity.
"CUSTOMER Data" Means the personal data that makes it possible to verify the identity of the CUSTOMER.
"End User" Means any entity to which the CUSTOMER provides the Software or the cloud services of the PROVIDER, or otherwise uses the Software or the cloud services.
"Software and Cloud Services" Are any of the computer programs through which the SUPPLIER provides services on the internet and to which a CUSTOMER subscribes under this Agreement.
"Software" Means the computer and application software developed by the SUPPLIER. Software does not include cloud services, but may be part of a cloud service.
Terms and Conditions" Are the additional terms operated by the PROVIDER that apply to the Software and CUSTOMER's use of the Software as well as cloud services.
"Pre-Release Versions" Are the preliminary versions, beta versions or other versions or pre-release features of the Software and cloud services offered by the PROVIDER in order to receive feedback from the CUSTOMERS.
"Professional Services" Are the technical support services for the Software and Cloud Services and the consulting, development and solution implementation services that PROVIDER provides to the CUSTOMER under this Agreement. "Professional Services" does not include cloud services.
"SLA" Is the Service Level Agreement, which specifies the minimum level of availability for the Software and cloud services.
"Subscription" Means a registration to obtain the Software and Cloud Services for a defined Term Period, as stipulated by the PROVIDER.
"Term" Means the duration of a Subscription.
"Devices" Are the GPS trackers, smartphones, mobile data terminals and accessories owned by the CUSTOMER and connected to the software and cloud services provided by the SUPPLIER.
"SIM" It is the data SIM card owned by the CUSTOMER that is necessary for his equipment to transmit data to the software and cloud services provided by the PROVIDER.
"Cartography" Are the traces and drawings of the map of the earth, where addresses and geography are found, which is used to locate goods, places, assets or people.
"Google Maps" Is a web map application server owned by Alphabet Inc.
"License" Refers to the set of permissions that the PROVIDER gives for the use of the software and cloud services it developed, which allow it to register, deregister, monitor and manage assets from the same. The PROVIDER translates the signals emitted by GPS/GPRS tracking devices of global positioning system (GPS), or general packet radio service (GPRS), or other devices that it homologates and that the CUSTOMER agrees to install in the future, to a connection through an API - Web Services. The CUSTOMER shall access the information only through the aforementioned Web Services connection.
"Asset" Refers to movable property, immovable property, live stock, object or person to which monitoring and telemetry equipment is installed to monitor, locate or manage it through software or cloud services supplied by the PROVIDER.
"Alert" It is a notice of the occurrence of a specific event related to a foreseen situation befalling an asset.
"Air Spectrum Usage Certification" Refers to the authorization by governmental authorities with respect to telecommunications. The devices must comply with the communications regulations in force in each country where they are used.
THIRD.- CONCESSIONS, RIGHTS AND TERMS.
A. SOFTWARE. By accepting each order, the PROVIDER grants the CUSTOMER a limited right to use the Software offered as a cloud-accessible service, in the quantities requested and within the country or countries where it offers the services stipulated in this contract and specified in the ANNEX to this contract. The foregoing, unless otherwise agreed.
However, this does not mean that the end user's assets (owned or leased) monitored with the help of the software and cloud services cannot cross the border of the territory of use of the agreed software and cloud services, in which case, it shall be subject to the conditions set forth in this contract and its ANNEX.
B. TERMS AND CONDITIONS. When the CUSTOMER requests access to the Software, the Terms and Conditions of the version in force at the time of the request shall apply. Consequently, for future versions and new Software, the "Terms and Conditions" that correspond to the most recent versions and/or updates will apply. The changes made by the PROVIDER to the Terms and Conditions for a specific version shall be understood as accepted at the moment in which the CUSTOMER uses such Software. Nevertheless, the CUSTOMER shall have the possibility of terminating the present contract, without liability for any of the parties, should the new Terms and Conditions not be convenient for the CUSTOMER.
C. LICENSES. The available licenses are temporary in accordance with the provisions of the ANNEX.
D. CLOUD SERVICES. The CUSTOMER may use the cloud services as set forth in this Agreement and its ANNEX.
E. TERMS AND CONDITIONS. The CUSTOMER by signing this agreement accepts The Terms and Conditions in effect for the software and cloud services; when the CUSTOMER requests or renews a subscription to a new software or cloud service or any update thereof, the Terms and Conditions updated and in effect at the time of the request or renewal shall apply.
Cloud services are billed periodically based on consumption and the number of active licenses. Likewise, the Terms and Conditions of the cloud services in force at the beginning of each billing period shall apply during such period, except in cases of subscription to new services.
The CLIENT acknowledges and accepts that the terms and conditions may vary and be updated as often as it is convenient for the proper provision of the services; hence, the use of the software and services implies the tacit acceptance of such Terms and Conditions.
F. SUSPENSION. The PROVIDER may suspend the use made of a software or cloud service, when the CUSTOMER infringes the Terms and Conditions or by not responding to a claim of a possible infringement of rights. The PROVIDER shall notify the CUSTOMER before suspending the use of a software or cloud service when reasonable.
G. END USERS. The CUSTOMER controls the access of End Users and is responsible for their use of the software and cloud services in accordance with this Agreement. For example, the CUSTOMER shall ensure that End Users comply with the Terms and Conditions of the service provided and posted on the above-mentioned website.
H. PERSONAL DATA OF THE CUSTOMER. The CUSTOMER shall be solely responsible for the totality of the content in the cloud, as well as for all the End Users' Data. The CUSTOMER shall protect and maintain all necessary rights of the End User Data, which are necessary for the PROVIDER to render the cloud services to the CUSTOMER and to the End Users to whom the CUSTOMER provides services without infringing the rights of third parties nor otherwise establish an obligation of the PROVIDER to the CUSTOMER or any third party.
The PROVIDER does not and shall not assume any obligation regarding the CUSTOMER's or End Users' Data, as well as the CUSTOMER's use of the cloud services and End Users' Data, except as specifically set forth in this Agreement or as required by applicable law.
DATA SET disassociated from the identification data of the CUSTOMER and End Users shall not be considered as personal data of the CUSTOMER or End Users.
All rights granted under this contract are non-exclusive, non-transferable and apply as long as the CUSTOMER is not in breach of this contract.
I. RESPONSIBILITY FOR THEIR ACCOUNTS. The CUSTOMER is responsible for maintaining the confidentiality of any non-public authentication credentials related to CUSTOMER's or End Users' use of the cloud services. The CUSTOMER shall immediately notify the PROVIDER of any possible misuse of the CUSTOMER's or End Users' accounts or authentication credentials, as well as any security incident related to the cloud services.
J. USE OF MAPPING AND OTHER INFORMATION COMPONENTS. The use by the CUSTOMER and the End User of cartographic materials, other images, statistical data and any other information components of cartographic programs, services, technologies, etc. that provide search and information and other support in the creation of illustrative cartographic materials on the basis of available digital data, is only possible by obtaining the corresponding permission from the author or other owner of such programs.
The PROVIDER shall neither initiate nor control the order to obtain the specified permission and does not know and cannot know at the time of granting and after granting the rights to use the Software and cloud services whether the End User infringes the legally protected rights and interests of the author, other program owners and third parties, international treaties and applicable law. The PROVIDER assumes no liability for the illegal use by the CUSTOMER or the End User of the Software and cloud services provided hereunder.
K. COUNTRY PROHIBITIONS. The CUSTOMER is prohibited from using the Software or cloud services, likewise shall not collect, process, store, distribute information, or contribute in any way to the creation and/or management of information and/or objects and services in a manner that may violate the law of the countries where they use it to provide their services or the rights and legitimate interests of third parties.
L. RIGHTS RESERVED. The Software and cloud services are protected by copyright and other laws and international treaties on intellectual and industrial property. The PROVIDER reserves all rights not expressly granted herein. No rights shall be granted or implied by waiver or estoppel. Rights to access or use the software or cloud services on any device do not grant CUSTOMER any rights to implement the PROVIDER's patents or other intellectual and industrial property of the PROVIDER in the device itself or in any other software or device.
M. RESTRICTIONS. The CUSTOMER may use the Software and Cloud Services only in accordance with the terms of this Agreement and its ANNEX. The CUSTOMER shall not (and is not licensed to): (1) use nor attempt to use reverse engineering, decompile, or disassemble the software; (2) install or use software or technology that is not the PROVIDER's in any way that makes the PROVIDER's intellectual property or technology subject to other license terms; nor (3) circumvent the technical limitations of the software or cloud services, as well as any restrictions in the documentation of the software or cloud services.
The CUSTOMER may not disable, alter nor otherwise attempt to circumvent any billing mechanism that measures the CUSTOMER's use of the cloud services. Unless permitted in this Agreement or in the software or cloud services documentation, the CUSTOMER may not distribute, sublicense, rent, lease, lend, loan, resell or transfer any software, in whole or in part to any third party, except as expressly authorized by the PROVIDER.
N. PRELIMINARY VERSION RELEASES. The PROVIDER may release Pre-Release Versions. Preview Releases are provided on an "as is" basis"with all their faults" "as available"and are excluded from the Service Level Agreement (SLA) and all limited warranties provided with this Agreement. Preview Versions can be subject to reduced or different security, compliance or privacy commitments as further explained in the Cloud Services Terms and Conditions and in any additional notices provided with the Preview Version. The PROVIDER can change or discontinue the Preview Versions at any time without prior notice. The PROVIDER may also choose not to release a Pre-Release Version for "General Availability".
O. DATA SET. THE INFORMATION of a general and non-personal nature derived from the collection of data, obtained through the different softwares of the PROVIDER, and whose collection, use, and commercialization is authorized by the CUSTOMER provided that it is not personal information.
FOURTH.- PERIOD OF VALIDITY AND TERMINATION.
a. Validity Period. The validity period of this contract is mandatory for ONE YEAR, which shall begin to run from the day on which both parties sign this contract and shall be automatically extended for consecutive periods of one year.
In the event that either party does not intend to have the term of this contract automatically extended, it shall give notice thereof in writing at least thirty days prior to the date on which the automatic renewal of the term will take place, via e-mail to the e-mail accounts specified in this contract and its ANNEX.
b. Termination. If either party breaches this Agreement, the other party may terminate the breached agreement (in whole or in part, including orders) upon notice to be given via the e-mail address set forth in this Agreement and its APPENDIX. If the breach is curable within thirty (30) days, then the party seeking to terminate the contract shall provide the breaching party with thirty (30) days' notice and an opportunity to cure the breach, which shall likewise be done through the email provided by the parties.
FIFTH.- SECURITY, PRIVACY AND DATA PROTECTION.
a. Access to the CLIENT's Administrator. The CUSTOMER consents that the SUPPLIER and its representatives process the DATASET to facilitate the object of this contract. CUSTOMER may choose to provide personal information to SUPPLIER on behalf of third parties (including its end users, contacts, resellers, distributors, administrators and employees) as part of this contract. The CUSTOMER shall obtain any necessary consent from third parties under applicable privacy and data protection legislation before providing personal information to the SUPPLIER.
b. Additional details on privacy and security are included in the Terms and Conditions for cloud services. The commitments made in the Terms and Conditions, only apply to cloud services purchased under this contract.
c. To the extent required by law, the CUSTOMER shall notify the end users, that the end users' data, could be processed for the purpose of disclosure to judicial or other governmental authorities as required by law, and in any case shall obtain the consent of the users for such purpose.
SIXTH.- DEFENSE AGAINST THIRD PARTY CLAIMS.
The parties shall defend and indemnify the other party against the third party claims described in this section and shall pay the amount of any adverse judgment rendered final and conclusive or approved settlement agreement resulting therefrom, but only if the claim is notified in writing and in a timely manner to the defending party and if the defending party has the right to control the defense and any settlement agreement thereof. The defending party must provide the defending party with all requested assistance, information and authority. The defending party shall reimburse the other party for reasonable expenses incurred in providing assistance. This section describes the parties' exclusive resources and full responsibility for such claims
a. On the part of the PROVIDER. PROVIDER will defend the CUSTOMER against any claim by a third party to the extent that the third party alleges that the Software, or cloud services, or a remediation made available by the PROVIDER for a fee and used within the scope of the license granted under this Agreement, misappropriates a trade secret or directly infringes a patent, intellectual property, trademark or other proprietary right of a third party. If the PROVIDER is unable to resolve a claim of infringement of rights under commercially reasonable terms, it may, in its absolute discretion: (1) modify or replace the Software or cloud services with equivalent functionality; or (2) terminate the CUSTOMER's license and refund any prepaid, unused license fees for the cloud services.
The PROVIDER shall not be liable for any claims or damages due to the CUSTOMER's continued use of the Software or Cloud Services after the CUSTOMER has been notified of the CUSTOMER's discontinued use of the Software or Cloud Services.
b. On the part of the CUSTOMER. To the extent permitted by applicable law, the CUSTOMER shall defend the PROVIDER against any third party claim to the extent that it asserts that: (1) any CUSTOMER Data that is not from the PROVIDER hosted on a cloud server of the PROVIDER or on behalf of the CUSTOMER infringes trade secret rights or directly infringes a patent, intellectual property, trademark or other proprietary right of a third party; or (2) the CUSTOMER's or End User's use of the software or cloud services, alone or in combination with anything else, infringes the law or harms a third party.
The CUSTOMER guarantees that it owns and/or has obtained all necessary rights, permissions, and approvals from third parties (including, without limitation, from the CUSTOMER's companies) to use all CUSTOMER logos, trademarks, artwork, database and any other content provided to the PROVIDER for use of the software and Cloud Services and that it has the right to monitor and manage (or allow its customers or End Users to track) the assets and devices, associated with the contracted services.
SEVENTH.- LIMITATION OF LIABILITY.
The maximum liability of each of the parties to the other party under this contract is limited to direct damages finally declared in an amount not to exceed the amounts that the CUSTOMER should have paid for the corresponding cloud services during the validity term of this contract, subject to the following:
a. Software and Cloud Services. For Software and Cloud Services, the PROVIDER's maximum liability to CUSTOMER for any one incident giving rise to a claim shall not exceed the amount paid by the CUSTOMER for the Software and Cloud Services during the 12 months prior to the incident; provided that in no event shall the PROVIDER's aggregate liability for any Software and Cloud Services exceed the amount paid for such Software and Cloud Services during the Subscription.
b. Exclusions. In no event shall either party be liable for loss of revenue or indirect, special, incidental, consequential, punitive or exemplary damages, or damages for loss of profits, loss of revenue, business interruption or loss of business information, regardless of cause or any theory of liability.
c. Exceptions. The limits of liability in this contract apply to the extent permitted by applicable law, but do not apply to: (1) in the case where the CUSTOMER has debts with the PROVIDER or (2) the infringement, by any of the parties, of the intellectual and industrial property rights of the other party. (3) When the CUSTOMER uses reverse engineering techniques, decompiles, disassembles the software, installs or uses software or technology that is not of the PROVIDER, and thereby affects the continuity and/or availability of the service.
d. Data transmission. Data transmission is not the responsibility of the PROVIDER since such service depends exclusively on the CUSTOMER or the company that provides the service. The equipment must have certification of use of air spectrum in the country where it will be used or be in the process of registration for these purposes. The SIM card shall be provided by a mobile telephone operator duly authorized by the local regulator of the country and shall be provided with wireless data transmission services and any other service required for its correct performance in wireless data transmission.
EIGHTH - TECHNICAL SUPPORT.
The technical support services available for the software and cloud services purchased under this agreement are subject to the terms and conditions of the Terms and Conditions.
The PROVIDER shall provide technical support 24 hours a day, 365 days a year, in two ways:
a. Active support: that which is given from the platform of the PROVIDER through chat, Monday through Friday from 8:00 am to 6:00 pm Central Mexico time.
b. Passive support: the CUSTOMER shall generate a ticket or resend a ticket generated by its customer or end user through its platform, which shall have a response time of up to 48 hours.
The CUSTOMER will be assigned a Technical Account Manager who will provide initial training, support to clarify doubts related to the use and configuration of the platform and shall receive your research, development, consulting and device homologation requirements and shall articulate them with the corresponding area. It Shall be available through the same means of contact defined for active technical support, from 9:00 a.m. to 5:00 p.m. Central Mexico time, subject to the coordination of a previous appointment.
NINTH - COMMERCIAL CONDITIONS.
The CUSTOMER shall pay the costs of activation, customization and professional services in advance, unless otherwise defined. Once payment is received, the PROVIDER shall begin the activation, customization and training process for the use of the software and cloud services.
The PROVIDER and the CUSTOMER shall coordinate and conduct the virtual training during the first week after the activation date. The PROVIDER shall deliver a video of the training to the CUSTOMER.
The activation shall be considered complete when the PROVIDER informs the CUSTOMER company that it can access the software and cloud services customized with its brand and start associating devices to such services.
The PROVIDER shall invoice the CUSTOMER for the cost of the licenses monthly in advance. The CUSTOMER shall pay each invoice within ten calendar days after the invoice date and send the proof of payment to the email address provided herein. Should the CUSTOMER fail to do so, the PROVIDER may suspend access to the Software and/or cloud services or terminate this contract in case of recurrence.
Payments must be made in US Dollars. In the case where the CUSTOMER company is based and provides services exclusively in Mexico, it may pay the equivalent of the amount in Dollars in the local currency, based on the FIX exchange rate of the U.S. dollar set by the Bank of Mexico for the day of payment.
The invoice value is determined by the number of licenses, each of which is associated to a device that the CUSTOMER has connected to the Software and to the cloud services of the PROVIDER, and that has reported at least once since it was registered, in addition to the costs of the information systems: satellite, mapping, global positioning additional to those provided by the PROVIDER or other services described in the ANNEX.
Each license of the PROVIDER contemplates that the device associated to it generates up to 60,000 reports per month. Should it generate more than 60,000 reports, the monthly cost of such license shall be increased in a directly proportional manner.
The PROVIDER may increase the cost of the monthly license per device up to three percent (3%) per year, as well as the cost of optional services, notifying the CUSTOMER by e-mail 45 days in advance.
TENTH.- FORMS OF PAYMENT.
If the CUSTOMER makes payments via PayPal, a 5% surcharge will be added to the amount of the invoice and if it is made through international transfers, USD 50.00 will be added to the amount of each invoice.
With respect to the implementation of the "SSL" certificate, which is mandatory, if the CUSTOMER opts to use a free Open Source certificate, as long as it is available for free, the PROVIDER will reimburse the costs of its implementation and annual maintenance. If one day it ceases to be free or the CUSTOMER chooses a paid certificate, the CUSTOMER shall pay a charge of USD 180.00 for the initial implementation and USD 50.00 for the annual maintenance of a new certificate.
A. Software and Cloud Services. The PROVIDER guarantees that each software and cloud service will be provided in accordance with the applicable SLA during the period of use made by the CUSTOMER. CUSTOMER's resouces in the event of breach of this warranty are specified in the SLA.
B. Exclusions. The warranties in this Agreement do not apply to problems caused by accident, abuse or use in a manner inconsistent with this Agreement, including failure to meet the minimum system requirements. To the maximum extent permitted by applicable law, these warranties do not apply to free or trial products, Preview Versions, or Limited Offerings.
C. Exclusion of Liability. Except for the limited warranties above, the PROVIDER gives no guarantee nor conditions for the Software or Cloud Services and excludes all other express, implied or statutory warranties for the Software or Cloud Services, including warranties of quality, ownership, non-infringement, merchantability and fitness for a particular purpose.
D. The PROVIDER shall allow the CUSTOMER company to:
a. Access to the software and services in the cloud, as long as it is up to date in the payment of its invoices, except in those occasions where the interruption is caused by an act of God or force majeure, a situation in which case the SLA shall apply, not being in any case a cause for termination of this contract due to the responsibility of the PROVIDER.
b. Sublet the service, provide maintenance and technical support.
E. The PROVIDER is committed to render the services with due diligence, using accredited personnel with due experience and preparation in compliance with internal procedures. In case of a loss of real availability of the connectivity service, the PROVIDER shall reimburse the CUSTOMER the discount percentages on the monthly fee of the service in which the connectivity fails according to the table and formulas indicated below:
98% a 99,4%
96% a 97.9%
90% a 95.9%
80% a 89.9%
Menor de 80%
The calculation will be made using the following formula:
Disp = 100 x (T - Tc) / T
Disp = % service availability
T = Total monthly time
Tc = Time with total loss of connectivity, which will be the time elapsed from the opening of the incident by the CUSTOMER until the restoration of the connectivity of the affected server or service.
"Service availability" = connectivity availability.
For the purposes of calculating the Service Availability, the time of duration of the incident (Tc) will be computed from the time the CUSTOMER communicates the lack of connectivity to the PROVIDER until the time when the PROVIDER verifies the restoration of connectivity.
In order to obtain compensation, the CUSTOMER must request it by e-mail to the PROVIDER after a maximum of 72 (seventy-two) consecutive hours from the time the incident has been closed, indicating: IP or domain affected, date, time of opening of the incident and any other documentation requested by the PROVIDER . The service availability guarantee applies exclusively to the connectivity of the service.
The service availability guarantee shall not apply in case of lack of service caused by:
- Configuration errors by the CUSTOMER or similar.
- Server crashes derived from excessive or erroneous use of the resources assigned to the CUSTOMER.
- Scheduled maintenance that has been previously notified via email or through the website.
- Work performed on the server by the PROVIDER commissioned by the CUSTOMER.
- Circumstances beyond the control of the PROVIDER, including, without limitation, those caused by force majeure and, among others, the following elements or resources:
- The computer system of the user/s.
- Navigation or connection software and accessories of the user.
- Viruses, Trojans, worms or any other hostile, harmful or damaging computer program on the user's equipment.
- Switched telephone network, ISDN, frame relay, cable, satellite and any other transport or telecommunications infrastructure (including DNS propagation) that does not depend on the PROVIDER or its suppliers.
The SLA guarantee shall not apply in the event that the CUSTOMER has breached some of the bases of service provision, or has incurred in default, reasons for which the PROVIDER has been forced to disable, suspend or disconnect the server, access to the software or cloud services contracted by the CUSTOMER with (or without) prior notice, depending on the urgency and severity.
Compensation will be made by means of a discount in the following billing at the request and approval of this, by the PROVIDER.
G. Requirements to ensure the functionality of the system. The CUSTOMER acknowledges that the trouble-free operation of the PROVIDER's software and cloud services depends on a combination of the appropriate configuration of software, hardware, pow sources, communication media, a virus-free environment, system security backup procedures and the CUSTOMER's adherence to the practices recommended by the PROVIDER, as indicated in the User Manual or help, understanding that if not followed, the failures generated by these faults are not remediable under the service guarantees granted in this contract.
TWELFTH.- OTHER CONTRACTUAL CLAUSES.
a) Notifications. The CUSTOMER must send the notifications by mail, with acknowledgment of receipt by e-mail to firstname.lastname@example.org.
b) Assignment. The CUSTOMER may not assign this contract in whole or in part. The PROVIDER may transfer the present contract without the CUSTOMER's consent, but only to one of the subsidiaries of the PROVIDER. Any prohibited assignment shall be null and void.
c) Retention. If any part of this contract is deemed unenforceable, the remainder shall remain in force.
d) Waiver. Failure to comply with any provision of this contract shall not constitute a waiver.
e) Agency. This Agreement does not constitute agency, partnership or joint venture.
f) No third party beneficiaries. There are no third party beneficiaries of this Agreement.
g) Use of contractors. The PROVIDER may use contractors to provide services, but shall be responsible for the services they render, subject to the terms of this Contract.
h) The PROVIDER is an independent contractor. The parties are independent contractors. The CUSTOMER and PROVIDER may develop software and cloud services independently, without using confidential information of the other party.
i) Non-exclusive contract. The CUSTOMER is free to enter into contracts to license, use or promote products or services other than those of the PROVIDER.
j) Applicable law and jurisdiction. This contract shall be governed in accordance with the laws of Mexico, regardless of its conflict with legal provisions. Any action to enforce this contract shall be brought before the competent authority in the State of Puebla expressly waiving any other jurisdiction, by reason of the domicile or nationality of the CUSTOMER.
This choice of jurisdiction does not prevent either party from requesting, in any appropriate jurisdiction, the adoption of precautionary measures in relation to the infringement of its intellectual and industrial property rights.
k) Entire Agreement. This Agreement is the entire agreement with respect to its subject matter and supersedes any prior or contemporaneous communications. In the event of a conflict between any of the documents in this Agreement that is not expressly resolved in the Documents, the terms of this Agreement shall govern in the following descending order of priority: (1) this Agreement (2) the ANNEX (3) the Terms and Conditions.
l) Survival. All provisions shall survive the termination of this Agreement, except those that are only required to be performed during the term of this Agreement.
m) Force Majeure. Neither party shall be liable for performance failures due to causes beyond such party's reasonable control (such as fires, explosions, electrical outages, earthquakes, floods, storms, strikes, embargoes, labor disputes, acts of civil or military authority, wars, terrorism (including computer terrorism), natural phenomena, acts or omissions of Internet traffic operators, acts or omissions of governmental or regulatory agencies (including the passage of laws, regulations or other governmental measures affecting the Software and the provision of the Cloud Services). However, this Section shall not apply to your payment obligations under this Agreement.
n) Contractual Authority. If the signatories agree to these terms on behalf of a legal entity, they attest to the fact that they have the legal authority to enter into this Agreement on behalf of that entity.
o) Payment of Fees. The PROVIDER shall not be liable for any payment of Duties that may be due under this contract entered into by the CUSTOMER and/or the CUSTOMER's Subsidiaries. Upon request of the PROVIDER, the CUSTOMER and its Subsidiaries shall provide the PROVIDER with proof of payment, to the corresponding authorities, of the applicable taxes or payment of duties.
p) Additional services: The PROVIDER may provide additional services as long as the CUSTOMER requests it in writing or by e-mail and the corresponding ANNEX is modified, likewise, in accordance with Article 86 TER of the Mexican Federal Consumer Law, the CUSTOMER may terminate the provision of the additional services, for which the PROVIDER shall have a maximum term of five calendar days from such manifestation to cancel it, without this implying the suspension or cancellation of the provision of the originally contracted services.
The cancellation of the additional services does not exempt the CUSTOMER from the payment of the amounts due for the services used. Therefore, it is explicitly forbidden for the PROVIDER to force the CUSTOMER to contract additional services as a requirement for the contracting or continuation of the provision of the originally contracted services.
THIRTEENTH.- CAUSES FOR TERMINATION. The PROVIDER may terminate this contract, without the need for judicial or administrative declaration and without notice, for the following causes:
a) For non-payment of 2 (two) or more invoices.
b) For illegal use of the software or cloud services.
c) If the CUSTOMER has provided false information regarding its identity or any other information related to or required for the contracting process.
d) If the CUSTOMER assigns, transfers or negotiates in any way the rights derived from this contract without prior written authorization from the PROVIDER.
e) For the CUSTOMER's non-compliance with the obligations contained in this contract.
f) For inappropriate use of the software and cloud services.
In case of termination of this contract for whatever cause, the CUSTOMER shall pay to the PROVIDER all amounts due at the date of termination as set forth in this contract.
FOURTEENTH NORMATIVITY: The parties agree to strictly comply with each and every one of the clauses of this contract, as well as the contents of the Commercial Code, the Federal Telecommunications and Broadcasting Law, the Federal Civil Code, the Federal Administrative Procedure Law, the Federal Code of Civil Procedures, the Federal Consumer Protection Law and other legal provisions that govern the contracting, execution and compliance with this contract.
FIFTEENTH RESOLUTION OF DISPUTES - This agreement shall be governed by the laws of Mexico, regardless of its conflict of law provisions. For the interpretation and fulfillment of this contract, as well as for the case of any controversy, litigation or claim of any kind, against any of the parties to this contract and all that is not expressly stipulated in the same are subject to the jurisdiction of the competent federal courts of the City of Puebla, Puebla,therefore the CUSTOMER expressly waives any other jurisdiction, which by reason of its present or future domicile or for any other reason may correspond to it. This choice of jurisdiction does not prevent either party from requesting, in any corresponding jurisdiction, the adoption of precautionary measures in relation to the infringement of its intellectual and industrial property rights.